Bridgeport Independent School District v. Williams

ON MOTION FOR REHEARING

OPINION

We withdraw our opinion issued on May 23, 2014, and substitute this one in its place. We overrule the appellant school districts’ motion for rehearing.

The appellant school districts appeal from the trial court’s order of dismissal *914granting the plea to the jurisdiction of appellees Michael Williams and the Texas Education Agency (TEA). Because we conclude that appellants’ claims are not ripe, we affirm the trial court’s order.

BACKGROUND

TEA receives federal grants under the federal No Child Left Behind Act (NCLB), and then distributes the grants to local school districts. See Tex. Educ. Code § 7.031; see generally 20 U.S.C. §§ 6301-7941. The NCLB requires states to set accountability standards for schools and to monitor compliance by schools and requires the schools to demonstrate “adequate yearly progress.” See 20 U.S.C. § 6311. To comply with this requirement, TEA adopted section 97.1004, which sets accountability standards and performance monitoring for determining Texas schools’ “Adequate Yearly Progress” “in accordance with the [NCLB].” See 19 Tex. Admin. Code § 97.1004 (Texas Education Agency, Adequate Yearly Progress (AYP)). The section currently states that the “determination of AYP for school districts and charter schools in 2012 is based on specific criteria and calculations, which are described in excerpted sections of the 2012 AYP Guide provided in this subsection.” 1 Id § 97.1004(b). The AYP Guide provides an appeals process for a school district to challenge an AYP designation determination. See id

In September 2012, most of the school districts administratively appealed their 2012 AYP designation determination, pursuant to the procedure provided in the AYP Guide and sought relief based on their contention that the AYP Guide was an “improperly adopted rule.”2 In December 2012, Williams, in his capacity as the Commissioner of Education (the Commissioner), denied these appeals, explaining that his decisions were final.

Around the time that the Commissioner denied these appeals, the school districts sued TEA and Michael Williams in his official capacity as the Commissioner for injunctive and declaratory relief under section 2001.038 of the Administrative Procedure Act (APA), see Tex. Gov’t Code § 2001.038, and section 37.003 of the Uniform Declaratory Judgments Act (UDJA). See Tex. Civ. Prac. & Rem.Code § 37.003. They challenged the validity of the AYP Guide, arguing that TEA did not have statutory authority to adopt it. Appellants also asserted claims of ultra vires actions and violations of Article I, section 3 of the Texas Constitution. See Tex. Const. Art. 1, § 3 (equal protection clause); City of El Paso v. Heinrich, 284 S.W.3d 366, 372-77 (Tex.2009) (describing ultra vires claims).

Several weeks later, the school districts filed an amended petition to add claims by the school districts seeking judicial review of the denial of their appeals of their preliminary 2012 AYP designation determina*915tions under section 7.057 of the Education Code and section 2001.171 of the APA. See Tex. Educ.Code § 7.057(d); Tex. Gov’t Code § 2001.171. The school districts also filed a motion for rehearing with TEA at that time. In March 2013, the school districts filed a separate suit, bringing the same claims as their initial suit. The two suits were consolidated in April 2013.

Appellees filed a plea to the jurisdiction. They challenged the trial court’s jurisdiction to consider any of appellants’ claims. They argued that appellants had failed to allege facts to establish that they had “any legal right or privilege that has been interfered with or impaired” as required by section 2001.038 of the APA and that appellants’ pleadings did not meet the requirements of the UDJA because the UDJA was not an independent grant of jurisdiction. They also challenged appellants’ standing, raised sovereign immunity, and urged that, to the extent appellants’ claims were moot or not ripe, appellants were seeking an advisory opinion.

Appellants filed a response as well as a motion for summary judgment with evidence. The parties also filed additional briefing with the trial court. Following a hearing on appellants’ motion for summary judgment and appellees’ plea to the jurisdiction, the trial court granted the plea without stating the grounds for its ruling and dismissed appellants’ claims.- This appeal followed.

ANALYSIS

Appellants raise 12 issues on appeal. They state their issues as follows:

1.Are Appellees creatures of state law, or do they have additional powers granted to them by the United States Congress to adopt and enforce state rules to implement federal law?

2. Did the Texas Legislature strip Ap-pellees of authority to adopt rules regulating federal grant applications in a 1995 re-write of the Education Code?

3. Are the rules, orders and acts of Appellees ultra vires?

4. Are the rules of Appellees among “the school laws of this state” within the meaning of Education Code Section 7.057(a)?

5. Do the rules, orders and acts of Appellees aggrieve the Appellants?

6. Do federal laws, rules or grant terms establish the rules needed to apply AYP ratings to Appellants?

7. Are Appellants’ injuries redressable by order of the trial court?

8. Does sovereign immunity bar Appellants’ claims?

9. Have Appellees improperly applied rating standards that were never proposed or adopted as rules?

10. Have Appellees violated state law by applying their 2012 AYP Guide to student performance after only one test administration?

11. Do the well-pleaded facts and summary-judgment evidence establish a lack of subject-matter jurisdiction over Appellants’ claims?

12. Did the trial court err in dismissing this case?

Appellants primarily attack the 2012 AYP Guide, its “bridge study” methodology,3 and the use of single test administration to determine AYP designations.

In their briefing, appellees argue that appellants’ issues are moot because the United States Department of Education *916(USDE) granted TEA a waiver in September 2013 from the requirement that it issue AYP designation determinations. See 20 U.S.C. § 7861 (authorizing waivers of statutory and regulatory requirements of NCLB); In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex.2005) (noting that case becomes moot if controversy ceases to exist on appeal); Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001) (noting that “a controversy must exist between the parties at every stage of the legal proceeding, including the appeal” for plaintiff to have standing and that, if controversy ceases to exist, case becomes moot); Texas Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846-47 (Tex.App.-Austin 2002, pet. denied) (“A case becomes moot when: (1) it appears that one seeks to obtain a judgment on some controversy, when in reality none exists; or (2) when one seeks a judgment on some matter which, when rendered for any reason, cannot have any practical legal effect on a then-existing controversy.”).

Appellees include in their appendix to their brief, among other documents, a letter from TEA to the school district administrators dated November 1, 2013.4 TEA notified the administrators that, in September 2013, the USDE “granted the State of Texas a conditional waiver for specific provisions of the Elementary and Secondary Education Act of 1965 (ESEA), as reauthorized by the [NCLB].” TEA further stated:

A key change resulting from the NCLB waiver is the elimination of the AYP designation.... With the granting of the NCLB waiver, AYP has been superseded to allow for a more flexible, state-specific approach to identifying schools in need of intervention.

TEA also noted that the waiver was conditional until “USDE reviews and approves Texas’s proposed guidelines for teacher and principal evaluation and support systems, which will be submitted in Spring 2014.”

Appellants argue that their claims are not moot because USDE’s waiver is “an extremely complicated, short-lived, and conditional agreement” that “expires in May, of its own terms.”5 While the parties join issue with whether the conditional waiver moots appellants’ claims, we view the controlling issue “more precisely as one of ripeness.”6 See Patter*917son v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex.1998). The ripeness doctrine “emphasizes the need for a concrete injury for a justiciable claim to be presented” and “examines when [an] action may be brought.” Id. at 442. It “focuses on whether the case involves ‘uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Id. (citation omitted). “By maintaining this focus, the ripeness doctrine serves to avoid premature adjudication.” Id. Whether claims are ripe is “determined at the time of adjudication.” Perry v. Del Rio, 66 S.W.3d 239, 250 (Tex.2001); see id. (“Ripeness should be decided on the basis of all the information available to the court. Intervening events that occur after decision in lower courts should be included, just as must be done with questions of mootness.” (citation omitted)); see also Robinson v. Parker, 353 S.W.3d 753, 755 (Tex.2011) (“Although a claim is not required to be ripe at the time of filing, if a party cannot demonstrate a reasonable likelihood that the claim will soon ripen, the case must be dismissed.” (citing Perry, 66 S.W.3d at 251)). “In the administrative-law context, moreover, avoiding premature litigation over administrative determinations prevents courts from ‘entangling themselves in abstract disagreements over administrative policies’ while simultaneously allowing the agency to perform its functions unimpeded.” Trinity Settlement Servs., LLC v. Texas State Sec. Bd., 417 S.W.3d 494, 506 (Tex.App.-Austin 2013, pet. denied) (quoting Patterson, 971 S.W.2d at 443).

We find the Texas Supreme Court’s analysis in Patterson instructive. In the context of federally funded programs, a family planning service provider challenged the constitutionality of a rider to the state’s “family planning appropriation” that declared “ ‘no state funds may be used to dispense prescription drugs to minors without parental consent.’ ” 971 S.W.2d at 440 (quoting General Appropriations Act, 75th Leg., R.S., ch. 1452, 1997 Tex. Gen. Laws 5535, 5675). The plaintiffs alleged injury was the loss of eligibility for federal funds. See id. at 441. In concluding that the plaintiffs injury remained contingent and that its challenge to the rider was not ripe, the court recognized that the constitution is the foundation for the ripeness and other justiciability doctrines. Id. at 442-43. The supreme court also explained the “pragmatic, prudential aspect” of the ripeness doctrine in addition to the constitutional justiciability issues presented:

Moreover, avoiding premature litigation prevents courts from “entangling themselves in abstract disagreements over administrative policies” while at the same time serving to “protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.”

Id. at 443 (citations omitted). The court noted that the contingencies as to the plaintiffs claims included “what the federal government will do if the state carries out its plan” and “what exactly the state will do.” Id. at 444.

Similar to the noted contingencies in Patterson, whether the USDE’s waiver becomes unconditional and what the state’s plan will be going forward if the waiver expires remain uncertain. See id.; see also Brantley v. Texas Youth Comm’n, 365 *918S.W.3d 89, 102-03 (Tex.App.-Austin 2011, no pet.) (concluding that claim challenging enactment was not ripe because plaintiff “neither alleged nor presented evidence that [enactment] has had or is threatening to have any tangible impact on her” and that plaintiffs “asserted interest in declaratory and injunctive relief rests upon the sorts of 'uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all’ that characterize unripe claims” (quoting Patterson, 971 S.W.2d at 442)).

Informed by the supreme court’s analysis in Patterson, we conclude that appellants’ alleged injury remains contingent and that appellants’ claims are not ripe for review. See 971 S.W.2d at 444. Thus, we would be issuing an advisory opinion were we to address appellants’ issues. See Robinson, 353 S.W.3d at 756 (concluding that petitioners “failed to present a sufficiently ripe, justiciable claim” because “no showing that Petitioners have suffered a concrete injury” and expressing “no opinion on whether, even if case was ripe, [Petitioners] would have standing” because “ ‘[t]he essence of the ripeness doctrine is to avoid premature adjudication ... [and] to hold otherwise would be the essence of an advisory opinion, advising what the law would be on a hypothetical set of facts’” (quoting Patterson, 971 S.W.2d at 444)); Patterson, 971 S.W.2d at 443 (noting that “courts of this state are not empowered to give advisory opinions” and that “[t]his prohibition extends to cases that are not yet ripe”); see also Tex. Const. Art. II, § 1 (separation of powers).

CONCLUSION

For these reasons, we affirm the trial court’s order granting appellees’ plea to the jurisdiction.